Tuesday, July 30, 2013

By Siesta-friendly
With the enactment of Republic Act No. 10361 (“An Act Instituting Policies For The Protection And Welfare Of Domestic Workers” or the “Domestic Workers Act” Or “Batas
Kasambahay”) we have finally raised the
level of stature of our kasambahay to
that of a legally-recognized and protected employee with corresponding rights,
benefits and privileges.

Who are the Kasambahay?

The law defines “Domestic worker” or Kasambahay as any person engaged in
domestic work within an employment relationship such as, but not limited to,
the following:

1)general househelp,

2)nursemaid or yaya,

3)cook,

4)gardener, or

5)laundry person,

6)any person who regularly performs domestic work in one
household on an occupational basis,

and excludes the following from
its definition:

1)Service providers,

2)Family drivers,

3)Children under foster family arrangement, and

4)Any other person who performs work occasionally or
sporadically and not on an occupational basis.(Sec. 4, R.A. 10361; Rule I, Sec. 2 of the Implementing Rules and
Regulations (IRR) of R.A. 10361)

R.A. 10361 also encompasses a kasambahay on a live-out arrangement
which is an arrangement where the kasambahay
works within the employer’s household but does not reside therein. (Rule I,
Sec. 3, IRR)

What is Domestic Work?

Domestic work means work performed in or for a household or
households. (Sec. 4 c)

While household means the immediate members of the family or the
occupants of the house that are directly provided services by the kasambahay. (Sec. 4 f)

Pre-employment

Prior to employment, the employer
may require the following from the kasambahay:

a)Medical certificate or a health certificate issued by a
local government health officer;

b)Barangay and police clearance;

c)National Bureau of Investigation (NBI) clearance; and

d)Duly authenticated birth certificate or if not
available, any other document showing the age of the domestic worker such as
voter’s identification card, baptismal record or passport.

These 4 requirements are standard
requirements when the employment is facilitated through the private employment
agency (PEA).And the cost of the requirements
shall be borne by the prospective employer or agency, as the case may be. (Sec.
12)

Employment Contract

The employment contract shall be signed
by the kasambahay and the employer
before the start of the service in a language or dialect understood by both.
The domestic worker shall be provided a copy of the duly signed employment
contract which must include the following:

1)Duties and responsibilities of the kasambahay;

2)Period of employment;

3)Compensation;

4)Authorized deductions;

5)Hours of work and proportionate additional payment;

6)Rest days and allowable leaves;

7)Board, lodging and medical attention;

8)Agreements on deployment expenses, if any;

9)Loan agreement;

10)Termination
of employment; and

11)Any
other lawful condition agreed upon by both parties. (Sec. 11)

Deployment expensesmean “expenses that are directly used
for the transfer of the domestic worker from place of origin to the place of
work covering the cost of transportation.” (Sec. 4 b)

Employers shall register all kasambahay under their employment in the
Registry of Domestic Workers in the barangay where the employer’s residence is
located. (Sec. 17)

Rights and Privileges of the Kasambahay

1)Minimum age. No person below 15 years of age can be
employed as kasambahay.(Sec. 16)

Working children
(15 years old and above but below 18) are entitled to minimum wage and all
benefits provided under RA. 10361. (Sec. 16 and Sec. 4 h)

2)Rights of Working Children. Working Children shall not
be subjected to the following:

1)work for more than 8 hours a day and beyond 40 hours a
week;

2)work between 10:00 p.m. and 6:00 a.m the following day;

3)work which is hazardous or likely to be harmful to the
health, safety or morals of children (Rule VI, Sec. 2, IRR)

3)Standard of
Treatment. The employershall not subject them to any kind of
abuse nor inflict upon them any form of physical violence or harassment or any
act tending to degrade their dignity. (Sec. 5).

The employer
shall safeguard the health and safety of the kasambahay in accordance with laws, rules and regulations, with due
consideration of the peculiar nature of domestic work. (Sec. 19)

4)Board, Lodging
and Medical Attendance.The employer
shall provide for their basic necessities (which shall not be withdrawn
or held in abeyance as punishment or disciplinary action) including:

a.at least 3 adequate meals a day,

b.humane sleeping arrangements that ensure safety, and

c.appropriate rest and assistance in case of illnesses
and injuries sustained during service without loss of benefits. (Sec. 6)

In the case of a
kasambahay on a live-out arrangement,
he/she should be provided space for rest and access to sanitary facility. (Rule IV, Sec. 13, IRR)

5)Daily Rest
Period. The kasambahay shall
be entitled to an aggregate daily rest period of 8 hours per day. (Sec.20)

6)Weekly Rest Period. The kasambahay shall be entitled to at least 24 consecutive hours of rest in a week. The employer and the kasambahay shall agree in writing on the schedule of the weekly rest day of the
domestic worker.The employer shall
respect the preference of the domestic worker as to the weekly rest day when
such preference is based on religious grounds. Nothing shall deprive the
domestic worker and the employer from agreeing to the following:

a.Offsetting a day of absence with a particular rest day;

b.Waiving a particular rest day in return for an
equivalent daily rate of pay;

c.Accumulating rest days not exceeding 5 days; or

d.Other similar arrangements. (Sec. 21)

7)Minimum Wage. The minimum wage of domestic
workers shall not be less than the following:

a.P2,500.00 a month for those employed in the National
Capital Region (NCR);

b.P2,000.00 a month for those employed in chartered
cities and first class municipalities; and

c.P1,500.00 a month for those employed in other
municipalities. (Sec. 21)

8)Applicable Minimum
Wage for Non-household Work.No kasambahay
shall be assigned to work in a commercial, industrial or agricultural
enterprise at a wage rate lower than that provided for agricultural or
nonagricultural workers. In such cases, the kasambahay
shall be paid the applicable minimum wage. (Sec. 22)

9)Payment of Wages at least Once a Month.
Payment of wages shall be made on time directly to the kasambahay to whom they are due in cash at least once a month. The employer,
unless allowed by the kasambahay through a written consent, shall make no
deductions from the wages other than which is mandated by law. No employer shall pay the wages of a kasambahay by means of promissory notes, vouchers, coupons, tokens, tickets,
chits, or any object other than the cash wage as provided for by R.A. 10361.(Sec. 25)

10)Deductions for Loss or Damage. Other than
those mandated by law, the employer shall not deduct any amount from the kasambahay’s
wages without the latter’s written consent; and in the case of such consent,
the deduction should still meet the following conditions:

1)the kasambahay is clearly shown to be
responsible for the loss or damage;

2)the kasambahay is given reasonable
opportunity to show cause why the deduction should not be made;

3)the total deduction is fair and reasonable
and shall not exceed the actual loss or damage; and

11)Thirteenth Month pay. The kasambahay is entitled to a thirteenth month pay as provided for by law. (Sec.
25)

The 13th month pay shall be paid
not later than December 24 each year or upon separation from employment. (Rule
IV, Sec. 8, IRR)

12)Prohibition Against Withholding of Wages.
The employer shall not, directly or indirectly, withhold the wages
of the kasambahay. If the kasambahay leaves without any
justifiable reason, any unpaid salary for a period not exceeding 15 days shall
be forfeited.The employer shall not
induce the kasambahay to give up any
part of the wages by force, stealth, intimidation, threat or by any other means
whatsoever. (Sec. 28)

13)Copy of Pay Slip. The employer shall at all
times provide the kasambahay with a copy of the pay slip containing the
amount paid in cash every pay day, and indicating all deductions made, if any.
The copies of the pay slip shall be kept by the employer for a period of 3
years. (Sec. 26)

14)Prohibition on Interference in the Disposal
of Wages. The employer shall not interfere with the freedom of any kasambahay to dispose of his/her wages.
The employer shall not force, compel or oblige the kasambahay to purchase merchandise, commodities or other properties
from the employer or from any other person, or otherwise make use of any store
or services of such employer or any other person. (Sec. 27)

15)Leave Benefits.A kasambahay who has rendered at least 1 year of service shall be
entitled to an annual service incentive leave of 5 days with pay.Any unused portion of the annual leave shall
not be cumulative or carried over to the succeeding years. Unused leaves shall
not be convertible to cash. (Sec. 29)

16)Social and Other Benefits. A kasambahay who has rendered at least 1 month of
service shall be covered by the Social Security System (SSS), the Philippine
Health Insurance Corporation (PhilHealth), and the Home Development Mutual Fund
or Pag-IBIG, and shall be entitled to all the benefits in accordance with the
pertinent provisions provided by law.

Premium payments
or contributions shall be shouldered by the employer. However, if the kasambahay is receiving a wage of P5,000.00 and above per month, he/she
shall pay the proportionate share in the premium payments or contributions, as
provided by law.

The kasambahay shall be entitled to all
other benefits under existing laws. (Sec. 30)

17)No
Debt Bondage. It shall
be unlawful for the employer or any person acting on behalf of the employer to
place the domestic worker under debt bondage, i.e, to have the kasambahay render service as security or
payment for a debt where the length and nature of service is not clearly
defined or when the value of the service is not reasonably applied in the
payment of the debt. (Sec. 15 and Sec. 4 a)

18)No
Deposits. No employer or any other person can require a domestic worker to make
deposits from which deductions shall be made for the reimbursement of loss or
damage to tools, materials, furniture and equipment in the household. (Sec. 14)

19)No
Recruitment and Similar Fees. Regardless of whether the kasambahay was hired through a PEA or a third party, no share in
the recruitment or finder’s fees shall be charged against the kasambahay. (Sec. 13)

20)Privacy.
The employer shall guarantee respect for their privacy at all times.This privacy shall extend to all forms of
communication and personal effects. (Sec. 7)

21)Access to Outside Communication. The employer shall grant them access to
outside communication during their free time.In case of emergency, access to communication shall be granted even
during work time. If the kasambahay
makes use of the employer’s telephone or other communication facilities, the
costs shall be on the kasambahay,
unless they are waived by the employer. (Sec. 8)

22)Right to Education and Training. The
employer shall afford them the opportunity to finish basic education and may
allow access to alternative learning systems and, as far as practicable, higher
education or technical and vocational training. The employer shall adjust the Kasambahay’s work schedule to allow such
access to education or training without hampering the services required by the
employer. (Sec. 9)

23)Rescue and Rehabilitation of Abused Domestic
Workers. Any abused or exploited kasambahay shall be immediately rescued by a municipal or city social welfare
officer or a social welfare officer from the Department of Social Welfare and
Development (DSWD) in coordination with the concerned barangay officials. The
DSWD and the DILG shall develop a standard operating procedure for the rescue
and rehabilitation of abused kasambahay, and in coordination with the DOLE, for
possible subsequent job placement. (Sec. 31)

24)Temporary Duty for Another Household. The kasambahay and the employer may mutually agree for the former to temporarily
perform a task that is outside the latter’s household for the benefit of
another household. However, any liability that will be incurred by the kasambahay on account of such arrangement shall be borne by the original
employer. In addition, such work performed outside the household shall entitle
the kasambahay to an additional payment of not less than
the existing minimum wage rate of a domestic worker. It shall be unlawful for
the original employer to charge any amount from the said household where
the service of the kasambahay was
temporarily performed. (Sec. 23)

This temporary
work for another household shall not exceed 30 days per assignment.And the other household where he kasambahay is temporarily assigned is solidarily
liable for any nonpayment of wages during such temporary assignment. (Rule V,
Sec. 11, IRR)

25)Employment Certification. Upon termination
of employment, the employer shall issue the kasambahaywithin 5 days from request a
certificate of employment indicating the nature, duration of the service and
work performance. (Sec. 35)

28)Non-Diminution of Benefits. All existing arrangements between the kasambahay
and the employer shall be adjusted to conform to the minimum standards set by
R.A.10361 within 60 days after the effectivity of R.A. 10361.But adjustments pertaining to wages shall
take effect immediately after the determination and issuance of the appropriate
wage order by the Regional Tripartite Wages and Productivity Boards (RTWPBs). And nothing in R.A. 10361 shall be construed
to cause the diminution or substitution of any benefits and privileges
currently enjoyed by the kasambahay hired directly or through an agency.
(Sec. 41)

Responsibilities of PEAs

In connection the rights and
privileges of the kasambahay, it is
important to know the PEAs responsibilities (Sec. 36):

1)Ensure that the kasambahay
are not charged or levied any recruitment or placement fees;

3)Ensure that the employment agreement stipulates the
terms and conditions of employment and all the benefits prescribed by R.A.
10361;

4)Provide a pre-employment orientation briefing to the kasambahay and the employer about their
rights and responsibilities in accordance with RA. 10361;

5)Ensure that the kasambahay
is not charged or required to pay any recruitment or placement fees (Rule III, Sec.
3 e, IRR);

6)Keep copies of employment contracts and agreements
pertaining to recruited the kasambahay
which shall be made available during inspections or whenever required by the
DOLE or local government officials;

7)Assist the kasambahay
with respect to complaints or grievances against their employers;

8)Cooperate with government agencies in rescue operations
involving abused or exploited the kasambahay;
and

9)Assume joint and solidary liability with the employer
for the payment of wages, wage-related and other benefits, including SSS,
Philhealth and Pag-ibig contributions (Rule III, Sec. 3 I, IRR).

5)Privileged Communication.All communication and information pertaining
to the employer or members of the household shall be treated as privileged and
confidential, and shall not be publicly disclosed by the kasambahay during and
after employment. Such privileged information shall be inadmissible in evidence
except when the suit involves the employer or any member of the household in a
crime against persons, property, personal liberty and security, and chastity.
(Sec. 10)

Termination of Service

The kasambahay may not terminate the contract before the expiration of
the term except for the following grounds (meaning the contract may be
terminated at any time should the following occur):

a)Verbal or emotional abuse of the kasambahay by the employer or any member of the household;

b)Inhuman treatment including physical abuse of the kasambahay by the employer or any member
of the household;

c)Commission of a crime or offense against the kasambahay by the employer or any member
of the household;

d)Violation by the employer of the terms and conditions
of the employment contract and other standards set forth under R.A. 10361;

e)Any disease prejudicial to the health of the kasambahay, the employer, or member/s of
the household; and

f)Other causes analogous to the foregoing. (Sec. 33)

On the other hand, the employermay not terminate the contract before
the expiration of the term except for the following grounds:

a)Misconduct or willful disobedience by the kasambahay of the lawful order of the
employer in connection with the former’s work;

b)Gross or habitual neglect or inefficiency by the kasambahay in the performance of duties;

c)Fraud or willful breach of the trust reposed by the
employer on the kasambahay;

d)Commission of a crime or offense by the kasambahay against the person of the
employer or any immediate member of the employer’s family;

e)Violation by the kasambahay
of the terms and conditions of the employment contract and other standards set
forth under this law;

f)Any disease prejudicial to the health of the kasambahay, the employer, or member/s of
the household; and

g)Other causes analogous to the foregoing. (Sec. 34)

Pregnancy and miscarriage are not
valid grounds for termination of employment. (Rule VII, Sec 4, IRR)

If the kasambahay is unjustly dismissed, he/she shall be paid the
compensation already earned plus the equivalent of 15 days’ work by way of
indemnity.

If the kasambahay leaves without justifiable reason, any unpaid salary due
not exceeding the equivalent 15 days’ work shall be forfeited. In addition, the employer may recover from the
kasambahay costs incurred related to
the deployment expenses, if any; provided that the service was terminated
within 6 months from the kasambahay’s
employment.

If the duration of the domestic
service is not determined either in stipulation or by the nature of the
service, the employer or the kasambahay
may give notice to end the working relationship 5 days before the intended
termination of the service.

The kasambahay and the employer may mutually agree upon written notice
to pre-terminate the contract of employment to end the employment relationship.
(Sec. 32)

Dispute Settlement

All labor-related disputes shall
be elevated to the DOLE Regional Office having jurisdiction over the workplace
without prejudice to the filing of a civil or criminal action in appropriate
cases. The DOLE Regional Office shall
exhaust all conciliation and mediation efforts before a decision shall be
rendered.

Ordinary crimes or offenses
committed under the Revised Penal Code and other special penal laws by either
party shall be filed with the regular courts. (Sec. 37)

Penalties

Any violation of R.A. 10361
declared unlawful shall be punishable with not less than P10,000.00 but not
more than P40,000.00 without prejudice to the filing of appropriate civil or
criminal action by the aggrieved party. (Sec. 40)

The law’s requirements can be
quite burdensome.If the kasambahay
does not have the appropriate papers such as a birth certificate, what happens
then?

It seems that employers who used
to pay less than the now minimum wage set by R.A. 10361 are now required to pay
the minimum wage from the time the kasambahay
were employed with them. That may mean years or decades of
less-than-minimum-wage pay. So households now seem to be required to pay
arrears for which they may not have the budget.

How many kasambahay would be capable of going to and from different
government agencies and filling several forms to meet the law’s requirements?

A one-stop-shop at the barangay
level where everything can be filed, including SSS, Philhealth and Pag-ibig applications,
would have been helpful. Requiring households to accomplish what any business
is required to do for their employees is easier said than done.Individual households don’t have messengers
to do the required legwork.Who’s
supposed to do line up half a day at the SSS and other government agencies while
the employers are at work, and there’s lots of household work to be done and
kids to take care of?

While the law has enabled us to progress
from simpler days when a helper was treated as a mere family member to now treating
them as legally-protected employees, our lawmakers seem to have forgotten that
the employers and employees here are mere household folks who may likely not
have the necessary resources to easily comply with the law.

“In the availment of the
privileges [under the law], the senior citizen, or his/her duly authorized
representative, may submit as proof of his/her entitled thereto any of the
following:

(1)an identification
card issued by the Office of the Senior Citizen Affairs (OSCA) of the place
where the senior citizen resides: Provided, That the identification card issued
by the particular OSCA shall be honored nationwide;

(2)the passport
of the senior citizen concerned; and

(3)other documents that establish that the senior citizen
is a citizen of the Republic and is at least sixty (60) years of age as further
provided in the implementing rules and regulations.” (Section 4) [emphases
supplied]

“a) Senior
Citizens’ Identification Card issued by the Office of Senior Citizens Affairs (OSCA) in the city or
municipality where the elderly resides;

b)The Philippine passport of the elderly person or senior
citizen concerned; and

c)Other valid documents that establish the senior citizen
or elderly person as a citizen of the Republic and at least sixty (60) years of
age, which shall include but not be limited to the following government-issued
identification documents indicating an elderly’s birthdate or age: driver’s license, voters ID, SSS/GSIS ID, PRC card, postal ID.” [emphases supplied]

“a. All
hospitals and drug retail outlets shall require Senior Citizens or their representative to present the following
requirements for the availment of the 20% discount:

1.Identification
card (ID) issued by the city or municipal mayor or Office for Senior Citizens
Affairs (OSCA) or the barangay captain of the place where the Senior Citizen
resides. The said ID should be recognized nationwide.

2.Except for over-the-counter (OTC) drugs,
a doctor's prescription should be presented.
A prescription should have the following information: name, age, sex, and
address of the Senior Citizen, as well as the date, generic name of the
medicine, dosage form, dosage strength, quantity, name and signature, address
of the prescribing physician, professional license number, and narcotic license
or S2 number, if applicable.

3.Purchase slip
booklets shall be used to record the kind of OTC medicine purchased, how
many, when and where it was purchased. Likewise, this will help the drugstores
to monitor the last purchase made for a certain medicine.” [emphases supplied]

Penalties

Seniors and establishments should
remember that “[a]ny person who refuses to honor the senior citizen card issued
by this the government or violates any provision of this Act shall suffer the
following penalties … [f]or the first violation, imprisonment of not less than
two (2) years but not more than six (6) years and a fine of not less than Fifty
thousand pesos (Php50,000.00) but not exceeding One hundred thousand pesos
(Php100,000.00)…” (Sec. 10)

The latest on this matter indicates
that the lawyer has dropped the charges after the owners of the restaurants
apologized after pleading they did not know that the law “allows the use of
identification cards other than the senior citizen’s card.”It’s also reported that the dropping of the
case is conditioned on the restaurants’ donation of “at least P20,000 each to
any home for the aged (like Golden Acres).”[1]

The “Expanded Senior Citizens Act
of 2010” means expanding the rights of senior citizens and not extending
senior moments to establishments.

[1]Cruz, N. H. (2013, July 16). As I See It
read more:
http://opinion.inquirer.net/56731/what-happened-to-qc-housing-tax-for-squatters